Westmont Power Kenya Ltd v Bosley Frederick

& another t/a Continental Traders &

Marketing

Court of Appeal, at Nairobi June 6, 2003

Kwach, Shah & Owuor JJ A

Civil Application No NAI 135 of 2003 (69 of 2003 UR)

(Application for a stay of execution of the decree of the High Court

of Kenya at Nairobi pending the hearing of the appeal against the

decision of the High Court Nairobi (Kuloba, J) given on

3rd April, 2003 in HCCC No 1700 of 2001)

Civil Practice and Procedure - stay of execution- application for summary judgment - defence alleging fraud and illegality of the contract – summary judgment entered - applicant applying for stay of execution pending appeal - appeal arguable - principle applicable in granting stay of execution.

Civil Practice and Procedure - summary judgment - defendant issuing cheques to plaintiff - defendant alleging cheques issued under coercion - cause of action based not on cheques – cause of action based on oral agreement - whether court obliged to enter summary judgment when facts are in issue.

The applicant applied for stay of execution pending appeal against summary judgment entered in favour of the respondent. The applicant had in its defence alleged that the oral agreement upon which the cause of action was founded was fraudulent, illegal and unenforceable. The applicant had issued cheques to the plaintiff which it later claimed were issued under coercion.

Held:

1. It is quite unusual to enter summary judgment when serous allegations of fraud and other wrong-doings are made. Such issues could only be decided during a proper trial and not on conflicting affidavits.

2. It was certainly arguable whether a cause of action based, not on cheques, but on an oral agreement can properly be the subject of an application for summary judgment when facts are in issue.

Application allowed.

Cases

No cases referred to.

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXXV rule 1

2. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2) (b).

Patel v Waweru & 2 others

Court of Appeal, at Nairobi June 6, 2003

Kwach, O’Kubasu & Githinji JJ A

Civil Application No NAI 247 of 2002 (123/2002 UR)

(Application for extension of time to lodge an application for leave

to appeal against the Ruling of the High Court at Nairobi

(Aganyanya J) dated 15th December 1998 in HCCC

No 1826 of 1987)

Civil Practice and Procedure – extension of time to seek leave to appeal – exercise of discretion under rule 4 Court of Appeal Rules – in dismissing application for extension – where insufficient reasons given for delay in bringing application.

This was a reference to the full Court against the dismissal of the applicant’s application for extension of time to seek leave to appeal. The applicant submitted that the single appellate judge had failed to consider correspondence attached to the supporting affidavit explaining the delay.

The supporting affidavit however did not give sufficient explanation for the delay.

Held:

1. A judge is called to exercise his unfettered discretion pursuant to rule 4 of the Court of Appeal Rules when deciding on matters of extension of time.

2. There was no misdirection on the part of the judge in exercising his unfettered discretion as there was no given for the delay.

Application dismissed.

Cases

1. Sila, Leo Mutiso v Rose Hellen Wangari Mwangi Civil Application No NAI 255 of 1997

2. Ratnam v Cumarasamy [1964] 3 All ER 933; [1965] 1 WLR 8; (1962) 28 MLJ 330

3. Grindlays Bank International (K) Ltd v George Barbour Civil Application No NAI 257 of 1995

4. Trade Bank Ltd (in liquidation) v IZ Engineering Construction Limited & another Civil Application No NAI 282 of 1998

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 54

Advocates

Mr Goswani for the Applicant.

Joan Chebichii Sawe v Republic

Court of Appeal, at Nairobi June 6, 2003

Kwach, Lakha & O’Kubasu JJ A

Criminal Appeal No 2 of 2002

(An appeal from a conviction & sentence in the High Court at

Nairobi (Etyang J) dated 16th March, 2001 in

HCCRC No 61 of 1999)

Evidence – Circumstantial evidence – as distinguished from direct evidence – legal requirements of circumstantial evidence – circumstances justifying conviction on the basis of circumstantial evidence – when inference of guilt points to one to the exclusion of all others – burden of proof in cases of circumstantial evidence - whether strong suspicion can be a basis for inferring guilt.

Evidence – burden of proof– proof of facts which justify the inference of guilt – burden on prosecution.

Evidence – proof of facts – proof of general custom which court intends to rely on – requirement that existence of a custom must be proved in evidence – Evidence Act (cap 80) section 5.

The appellant was convicted, by the High Court, of murder of her husband contrary to section 203 and 204 of the Penal Code (cap 63). The prosecution’s case was that the appellant, with malice aforethought, caused the death of the deceased. The High Court received no eye-witness accounts as there were mo such witnesses.

The prosecution set out to piece together certain events, which it placed before the Court as circumstantial evidence connecting the appellant with the death of the deceased.

The High Court held that the prosecution had proved beyond reasonable doubt that the appellant had started the fire which caused the death of the deceased. The Court also came to the conclusion that the prosecution had proved beyond reasonable doubt that the appellant had caused the death of the deceased with malice aforethought. The appellant lodged an appeal against the conviction on the ground that the judge had erred in law and fact when he found against the weight of the evidence that the appellant caused the death.

Held:

1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.

3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

4. The existence of any general custom, which the Court intends to rely on must be proved by evidence.

5. The circumstantial evidence in the instant case did not irresistibly point to the appellant to the exclusion of all others so as to justify conviction.

6. The evidence used to convict the appellant did not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant.

7. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

Appeal allowed, conviction quashed and sentence set aside.

Cases

1. Hassan v Nathan Mwangi Kamau Transporters & 4 others [1986] KLR 457; (1982-88) 1 KAR 946

2. R v Kipkering Arap Koske & another (1949) 16 EACA 135

3. Gichira, Mary Wanjiku v Republic Criminal Appeal No 17 of 1998

Statutes

1. Penal Code (cap 63) section 203, 204

2. Evidence Act (cap 80) section 5

Advocates

Dr Githu Muigai for the Appellant